On a collision course

NELSON'S EYE: George Fernandes (left) and Ajit Kumar should have resolved the issue amicablyThough the Indian political system is no stranger to crises, ties between the armed forces and their political masters have been remarkably even, if somewhat distant. But as in all things, change has arrived with nasty suddenness.

Last week, a crisis erupted when Chief of Naval Staff Admiral Vishnu Bhagwat refused to accept the decision of the Appointments Committee of the Cabinet (ACC) to designate Vice-Admiral Harinder Singh, fortress commander Andaman Islands, as the deputy chief of naval staff (operations). And even as the naval drama unfolded, the Ministry of Defence (MoD) was dragged to court in two other cases relating to the army and the air force.

Bhagwat's defiance came in the wake of a series of writs and counter-writs filed by Singh and the navy chief. In refusing to implement the ACC's decision, Admiral Bhagwat is treading on "dangerous waters", says a former cabinet secretary, not wanting to be named.

According to a senior official dealing with the issue, "Either the navy chief leaves or carries out the orders." However, Defence Minister George Fernandes struck a conciliatory note, saying that efforts were on to resolve it amicably and that it had "to be settled within the ministry and the Government".

Bhagwat has cited the Navy Act of 1957 which say that appointments of all officers above the rank of captain "shall be made by the government on the recommendation of the chief of naval staff". A legal expert and member of the Law Commission who did not wish to be identified says the MoD can at best be guilty of a technical lapse since the power of appointment clearly rests with the ACC. "If I were to advise the Government," he says, "I would say that the clause is 'directory' and not 'mandatory'." Had it been otherwise, punitive provisions would have been specified, he adds.

The defence minister's remarks and the fact that he is a member of the ACC suggest that he had taken into account Bhagwat's point of view and overruled his recommendation that Vice-Admiral Madanjit Singh be appointed to the post. A senior cabinet official says the Government took a "judicious decision" to overrule the navy chief after considering his viewpoint.

COMBATIVE CHIEF: Admiral Vishnu Bhagwat's stand has put the Government in a spotBut another former cabinet secretary says a person who does not command the approval of the service chief should not be appointed to a senior position. In his view, the responsibility for this sorry state of affairs must rest with Fernandes and Defence Secretary Ajit Kumar.

According to him, Fernandes should have called Bhagwat and Kumar and sorted out the problem informally, and, if needed, even taking it all the way up to the prime minister. "Whichever way you look at it," he says, "terrible damage has already been inflicted on the system."

Singh had in June 1998 filed a writ petition in the Calcutta High Court charging that Bhagwat had refused to consider him for the post of deputy chief of naval staff because of past prejudice against him. Earlier, on March 22, he had filed a redressal of grievance petition with the flag officer commanding, Eastern Naval Command, his immediate superior.

In a shocking personal reference, he claimed that Bhagwat had not performed the last rites of one of his parents and charged that the navy chief 's wife, advocate Nilofer Bhagwat, "is a half Muslim, card-carrying member of the Communist Party". For these and some other comments, the MoD issued a show cause notice to Singh.

When the MoD apparently accepted Singh's explanation, Bhagwat filed a 70-page contempt petition in the Calcutta High Court against Singh and charged Kumar with colluding with him. This petition was dismissed by the court, but it formed the backdrop for the present crisis.

According to a senior navy officer, "Harinder Singh was not rejected by Admiral Bhagwat alone, but a board comprising all flag officer commanding-in-chiefs and the vice-chief of naval staff." As per procedure, top commanders and service chiefs make the recommendations to the MoD which forwards it to the ACC.

Military officers say that the MoD often does not provide the ACC with an accurate picture of the recommendations. But MoD sources say that the note which went to the ACC clearly stated that there were differences of opinion between the ministry and the naval headquarters on the issue.

If this was the case, it is surprising that Fernandes did not use his authority to sort out the problem before it reached a flashpoint. Unlike his predecessor, Fernandes had taken a series of measures to restore the process of consultation between the services and the MoD, but there is an impression now that he has been on the sidelines in the navy-MoD row.

Claims an aide: "The raksha mantri (Fernandes) has tried his best but he can't handle such senior officials like errant schoolboys." If gung-ho Fernandes cannot do the needful, then whose job is it?

The MoD view

HQ recommendation cannot be tantamount to a veto over the decision of the ACC.The Mod's job is to ensure that no injustice is done to any officer.ACC decisions are taken on the basis of other inputs such as intelligence files.In a democracy, civil-ian supremacy is re-quired to keep a check on the military.

Naval H Q

Navy Act says the government must only appoint a person recommended by the HQ.HQ recommendations are made by a board of top offi-cers who know the persons to be selected well.Any deputy chief or senior officer must have the trust of the navy chief.Civilian supremacy over the military is one thing, babucracy quite another.

Appointments to all government and semi-government bodies are made by the ACC which comprises the prime minister, home minister, finance minister and the head of the ministry concerned.

The cabinet secretary is the secretary of the ACC. He puts up the papers but does not intervene unless there is an inter-ministerial dispute.

Using inputs from the intelligence wing and elsewhere, his job is to ensure that the right candidate is appointed.

The bureaucracy views the promotion process of the armed forces as similar to that of civilian officers.

But the armed forces say there is a slight difference. Even in a democracy, the military is a semi-authoritarian institution and for this reason its command and control structure varies from that of civilian organisations.

They are also governed by special statutes like the Army, Navy and Air Force Acts. "Operational efficiency requires a hierarchy that is not needed in civilian life," says a former service chief.

Differences between the bureaucracy and the services over promotions have turned into a war of attrition - often fought in the courts - that is bound to affect the functioning of the armed forces. Last year, for 10 long months the mod held up the army's list of officers promoted to the rank of lt-general because it wanted to include in the list an officer close to the then defence minister Mulayam Singh Yadav.

This year, the story was repeated with the navy when the mod refused to place the list of those selected by the Naval Board to the acc . When the ministry finally moved, it rejected the navy's nominee and recommended Vice-Admiral Singh instead.

Perhaps the last word on the case will be that of the court which seems to be displaying an uncomfortable degree of activism in matters relating to the armed forces.

On December 16, a division bench of the Delhi High Court rejected the Government's appeal against a stunning verdict: Justice Vijender Jain of the Delhi High Court quashing the appointment of Lt-General H.R.S. Kalkat as the general officer commanding-in-chief of the army's Eastern Command and ordering Lt-General Raj Kadyan be appointed instead.

A little earlier, a division bench of the same court had issued a contempt of court notice to Kumar and two other mod officials for not acting on a decision calling on the Government to promote Air Vice-Marshal P.K. Ghosh to the rank of air marshal.

While some view this as judicial interference in the prerogatives of the executive, a closer scrutiny reveals a disturbing pattern of wrong-doing on the part of both the armed forces headquarters and the mod.

Indeed, the civil-military conflict dates back to Independence. Leaders of the nationalist movement who formed Independent India's government looked down upon the colonial-era officers who they thought aped their British masters.

In the 1950s, when India's border problems with China ratcheted up towards a climax, in a case similar to that of Harinder Singh, the then defence minister appointed Major-General B.M. Kaul chief of general staff, an action that contributed to the army's disastrous defeat in 1962.

The breakdown in civil-military ties started with the coalition era.

With this lesson, political and bureaucratic management tried to improve in the ensuing decades. But the breakdown began in the coalition era of the '90s, when the authority of the Union government began to get diluted.

The hold of the ministers weakened and the bureaucrats became all-powerful. The trough of sorts was reached during Yadav's tenure and many of the cases dogging the courts currently are a result of his clumsy interference in the matter of promotions, aided by a shortsighted bureaucracy

According to former defence secretary N.N. Vohra, the armed forces do not often understand the rationale of the bureaucracy's actions. The civil services derive their responsibilities from two crucial rules drafted in 1961.

The first is the Allocation of Business Rules which divide the work of the Government of India among various ministries and departments and the second is the Transaction of Business Rules which outline how the various departments should conduct their business.

"Even the minister's final authority is circumscribed by the secretary's crucial responsibility to ensure adherence to these rules," says Vohra, who was also principal secretary to former prime minister Inder Kumar Gujral.

Rules or no rules, the armed forces' grouse against the civilians is a fact of life. But equally precious is the principle of civilian supremacy in matters relating to defence.

The Bhagwat-MoD row and the spate of recent court cases by senior military officers point to a systemic problem that needs urgent fixing. A country that claims it is a nuclear armed state can ill-afford a dysfunctional civil-military relationship.

Lt-General Raj Kadyan VS Union of India and Others

Supersession: The Delhi High Court has upheld Kadyan's contention
that injustice was done to him in superseding his claim to be appointed
the GOC-in-C of the Eastern Command. According to the court, since
Kadyan was found otherwise fit for the position, he should have been
appointed on the basis of his seniority. In this, the court has rejected
the Government's view that Lt-General H.R.S. Kalkat won out on merit.
Kadyan's travails were a result of the interference of former defence
minister Mulayam Singh Yadav who wanted to promote an officer of his
choice in 1996.

Air Vice-Marshal P.K. Ghosh VS Defence Secretary

Denial of promotion:
A division bench has found that MoD bureaucrats had mislead the ACC and
promoted Air Vice-Marshal S. Raghavan by falsely claiming that the
court had ordered it. Ghosh's promotion continues to be blocked on the
plea that regulations permit only a certain number of air marshals and
that all the positions are currently full. Raghavan's appointment was
regularised through the ACC on May 30, but the court's decision of March
23 in Ghosh's favour was apparently not brought to the ACC's notice.
The defence secretary has now been slapped with a notice of criminal
contempt.